Yates Property Corp Pty Ltd v Boland

[1999] FCA 397

FEDERAL COURT OF AUSTRALIA

Yates Property Corp Pty Ltd v Boland [1999] FCA 397

COSTS – Action against three respondents dismissed – Appeal to Full Court – Appeal not pursued against second respondent – Appellant seeks order that other respondents indemnify it in relation to trial judge’s order that it pay second respondent’s costs of trial.

YATES PROPERTY CORPORATION PTY LTD and IAN FRANCES YATES v JOHN BOLAND (as representative of Abbott Tout Russell Kennedy, Solicitors), THEODORE SIMOS and JOHN WEBSTER

NG 495 OF 1997
NG 716 OF 1997
NG 717 OF 1997

DRUMMOND, SUNDBERG and FINKELSTEIN JJ
9 APRIL 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 495 of 1997 NG 716 of 1997 NG 717 of 1997

BETWEEN:

YATES PROPERTY CORPORATION PTY LTD
First Appellant

IAN FRANCES YATES
Second Appellant

AND:

JOHN BOLAND (as representative of Abbott Tout Russell Kennedy, Solicitors)
First Respondent

THEODORE SIMOS
Second Respondent

JOHN WEBSTER
Third Respondent

JUDGE:	DRUMMOND, SUNDBERG AND FINKELSTEIN JJ
DATE OF ORDER:	9 APRIL 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion notice of which was filed on 14 December 1998 be dismissed.

2.The first appellant pay the respondents’ taxed costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 495 of 1997 NG 716 of 1997 NG 717 of 1997

BETWEEN:

YATES PROPERTY CORPORATION PTY LTD
First Appellant

IAN FRANCES YATES
Second Appellant

AND:

JOHN BOLAND (as representative of Abbott Tout Russell Kennedy, Solicitors)
First Respondent

THEODORE SIMOS
Second Respondent

JOHN WEBSTER
Third Respondent

JUDGE:	DRUMMOND, SUNDBERG AND FINKELSTEIN JJ
DATE:	9 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. The first appellant (Yates) seeks an order that the first and third respondents (Abbott Tout and Mr Webster) indemnify it in relation to the primary judge’s order that Yates pay the second respondent’s (Mr Simos) costs of the trial.  At trial Yates failed against all three respondents.  It appealed against all the primary judge’s orders.  However, it did not pursue its appeal against Mr Simos because it was unable to put up security for his costs as well as that ordered to be provided in relation to the costs of the other respondents.  The order now sought is in the nature of a Bullock order.

2. In our reasons for judgment allowing the appeal we said:

   “The orders made by the trial judge on 5 June 1997 dismissing the application against Abbott Tout and Mr Webster should be set aside and in lieu thereof it should be ordered that the proceeding be remitted to a judge of the Court for the assessment of damages.  … The order as to costs made on 14 August 1997 should be set aside.  If, after taking into account the damages for special value Yates has already received, Yates receives further damages then it should have its costs of the trial.”

   The “damages for special value Yates has already received” consist of the $500,000 awarded by Cripps CJ as part of his overall award of $22,334,500, and the compensation element of the $1.25 million paid when the appeal to the Court of Appeal was compromised (approximately $565,000).

3. The reason we did not order Abbott Tout and Mr Webster to pay Yates’ costs of the trial was because of the possibility that Yates will not on the assessment of damages recover more than it has already recovered.  In other words, it was thought premature to make any order against Abbott Tout and Mr Webster in relation to Yates’ costs of the trial.  If it was premature to make such an order, it is the more clearly premature to consider the present application that Abbott Tout and Mr Webster indemnify Yates in respect of Mr Simos’ costs of the trial.

4. The motion notice of which was filed on 14 December 1998 is dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Sundberg and the Honourable Justice Finkelstein.

Associate:

Dated:             9 April 1999

Counsel for the first and second Appellants:	D Raphael
Solicitors for the first Appellant:	Bruce & Stewart
Counsel for the first Respondent:	A G Bell
Solicitors for the first Respondent:	Minter Ellison
Counsel for the second Respondent	J L B Allsop SC and P R Whitford
Counsel for the third Respondent	S T White
Solicitors for the third Respondent	Moray & Agnew
Date of Hearing:	30 November 1999